Council of the Shire of Redland v Seymour Land Pty Ltd [1993] QCA 74

IN THE COURT OF APPEAL [1993] QCA 074 SUPREME COURT OF QUEENSLAND Appeal No. 183 of 1992 Planning & Environment Court Appeal No. 42 of 1992 Brisbane [Council of the Shire of Redland v. Seymour] BETWEEN: COUNCIL OF THE SHIRE OF REDLAND Appellant - and - SEYMOUR LAND PTY. LTD. Respondent The Chief Justice Mr Justice McPherson Mr Justice Pincus Judgment delivered on the seventeenth day of March, 1993. The Chief Justice and McPherson J.A. delivering reasons jointly. Pincus J.A. delivering separate reasons. All agreeing as to the order to be made. APPEAL DISMISSED WITH COSTS CATCHWORDS: LOCAL GOVERNMENT - TOWN PLANNING - Appeal from Planning and Environment Ct allowing application for subdivision - Wh error of law shown in construction of Development Control Plan. Counsel: P.J. Lyons, Q.C., with him S.M. Ure for the appellant. D.R. Gore, Q.C., with him R. Litster for the respondent. Solicitors: King & Co. for the appellant. Stubbs Barbeler Grant for the respondent. Hearing Date: 9 February, 1993. -- 1 of 16 -- IN THE COURT OF APPEAL OF QUEENSLAND Appeal No. 183 of 1992 Planning & Environment Court Appeal No. 42 of 1992 Brisbane Before The Chief Justice Mr Justice McPherson Mr Justice Pincus BETWEEN: COUNCIL OF THE SHIRE OF REDLAND Appellant - and - SEYMOUR LAND PTY LTD Respondent JUDGMENT - THE CHIEF JUSTICE AND McPHERSON J.A. Delivered the seventeenth day of March, 1993. The Council of the Shire of Redland, which was the local authority concerned, refused an application made to it for subdivision of land situated in Shore Street, Cleveland. The applicant for subdivision then appealed to The Planning and Environment Court against the refusal. That Court, in a decision handed down on 17 July, 1992 concluding that the subdivision ought to be approved, allowed the appeal. The Council, as one "aggrieved" by the decision of The Planning and Environment Court, now brings an appeal to this -- 2 of 16 -- 2 Court but the grounds on which it is permitted to do so are limited to error or mistake in law or absence or excess of jurisdiction: s. 7.4 of the Local Government (Planning and Environment) Act 1990. The ground upon which the Council relies in this case is error or mistake in law. The respondent's application for subdivision of its land in Shore Street proposed dividing the total area of 1.754 hectares into four substantial allotments. Each would front Shore Street and they would vary in size between 3,500 square metres and 4,500 square metres. The respondent's land lay within the area covered by the Shire of Redland's Town Planning Scheme. Under the scheme the area covered by the Plan was divided into zones and the respondent's land lay within a zone entitled "Comprehensive Development Zone". In Part II Division 2 that zone was described in this fashion: "Intent of the Zones ... (20) Comprehensive Development Zone - This zone is intended to enable particular areas of the Shire to be developed in a comprehensive and co-ordinated manner. Development control plans will be prepared specifically to serve this purpose of co-ordinating and providing detailed guidelines for development of areas within this zone. The zone also provides for the development of areas or individual parcels of land which, because of their location or existing usage or for other reasons, are suitable for a range of uses not catered for in any other zone or which requires special attention to be paid to certain aspects of their development." A description of the development control plan was supplied in an appendix which in part stated as follows: -- 3 of 16 -- 3 "This development control plan ... forms part of the town planning scheme for the Shire of Redland ... -- 4 of 16 -- 4 Aims - (1) The purpose of this development control plan is to control development in each of the twelve mainland districts of the Shire ... It designates preferred dominant land uses for the different parts of each district ... and prescribes a pattern for the layout of roads and disposition of public open space as a guide for subdivision and provides guidelines for development. (2) Its aim is to provide for the orderly development of each district and township at the same time providing for the enhancement of the amenity of each district and township and for the retention of their special character." Some of the indications which can be gathered from the last matter quoted are repeated in a later paragraph (17) of the appendix which commences in this fashion: "Comprehensive Development - This designation covers land in respect of which there is a special need for the co-ordination and detailed guidance of development, in addition it covers parcels of land whose topographical features, existing uses or other considerations indicate a need for a greater degree of flexibility or control in handling development." A later paragraph in the appendix also numbered 17 is in these terms: "17. Comprehensive Development (1) Objective - To provide for the orderly development of areas designated Comprehensive Development on map sheets 2 to 19. [The applicant's land is included on map sheet 7.] (2) Implementation - ... (xii) Designated area located at Shore Street (northern and southern sides), -- 5 of 16 -- 5 Ormiston/Cleveland and Freeth Street, Ormiston/ Cleveland (see map sheet 7). The prime consideration with the development of this designated area is that development should enhance the approach from the west and north-west to Cleveland Town Centre. [It was accepted that the reference is to an approach along Shore Street.] The designated area is considered to be suitable for a range of commercial or other uses appropriate to the periphery of a Town Centre provided such uses represent comprehensive development proposals based on a functional theme or represent a single corporate development project. Such uses would include large company headquarters or offices, technical parks, hospitals, retirement villages or similar. It would not be Council's intentions to see the area fragmented for the purpose of accommodating a variety of industrial, showroom or retail type warehouses, reliant on exposure from an arterial road for trade and service. Direct vehicular access from Shore Street will generally not be favoured." The respondent's subdivisional plan provided for a twelve metre recessed road parallel to Shore Street and the Council's planner accepted that the recessed road would enhance the approach along Shore Street to Cleveland town centre. By the time the matter reached The Planning and Environment Court there were no outstanding differences over access. That Court had to consider only the remaining grounds on which the Council had notified its refusal of the -- 6 of 16 -- 6 subdivisional application. These were that the proposed subdivision represented fragmentation of a Comprehensive Development Zone parcel contrary as it was alleged to the intent of the Town Planning Scheme and that the proposal was not preceded by a development application which fully addressed the need to satisfy the intention of the Town Plan. This second ground again involved reference to the intention that "fragmentation" not occur within the zone. As has been stated, if the Council is to succeed in its appeal it is necessary for it to demonstrate an error of law. It attempted to do this by attributing to the plan scheme and its appendices, including appendix cl. 17(xii), a particular meaning. The Council's argument suggested that the plan objective stated in the scheme directly and specifically sought to restrict subdivision within the zone. In fact it does not do this. In the proceedings below both the respondent and the Council produced evidence from town planners who in each case were permitted to offer their interpretation of the relevant provisions in the scheme. This was, of course, a matter of law for decision by the judge. Nevertheless, the judge seems to have found that the views aired by these gentlemen on the construction question were of assistance in focusing on the issues. At one point in her reasons she expressed her preferred construction of the provisions by reference to an interpretation offered by one of them. However, there is no indication that the judge did anything other than consider the question of construction carefully -- 7 of 16 -- 7 and arrive at and apply the interpretation which she thought that the relevant provisions should bear. Further, the conclusion at which she arrived should be accepted as correct. The direct and express concern of cl. 17(xii), the words of which have been quoted above, is not with fragmentation of areas, at least not directly and expressly, but with fragmentation of uses. "Development" does not simply mean subdivision. It is concerned with the user of or the erection of structures upon land. The ordinary meaning of the word supports this view and a definition which is provided in Part I of the scheme confirms that this is the correct meaning to adopt when subcl. (xii) is considered. It is also borne out by the first sentence of subcl. (xii), which is concerned not with subdivision of the land but with enhancement of the visual approaches to the Town Centre. A notable feature of subcl. (xii) is that it lacks specificity in its statement of the preferred objective. It mentions certain uses which it finds acceptable but it does not state them as an exhaustive list. It is indicated that the designated area is regarded as "suitable for a range of commercial or other uses appropriate to the periphery of a Town Centre" (underlining added) but a proviso is appended introducing a restriction to "uses (which) represent comprehensive development proposals based on a functional theme or represent a single corporate development project". Such indications as are given by this proviso are very -- 8 of 16 -- 8 broad but from the subclause as a whole it is possible to state that while examples are provided of uses which are accepted as conforming with the plan objective there is no necessary restriction to those uses but that nevertheless some degree of unity of function or at least absence of incompatibility is contemplated in respect of the future use of land within the zone. This impression is strengthened by these words of the subclause, "It would not be Council's intention to see the area fragmented for the purpose of accommodating a variety of industrial, showroom or retail type warehouses, reliant on exposure from an arterial road for trade and service". In a clause constructed like the one under consideration with a preferred development objective stated, it might be possible in some instances to say that a particular subdivisional proposal would on its face be inconsistent with the objective, for example, if the objective was stated as development for agricultural farms and the subdivision proposal was for twenty-four perch blocks, that is, blocks of the size commonly encountered in residential developments. But no situation of that kind arises here. Such uses as are stated as being acceptable are not exhaustively listed and there is nothing in the respondent's subdivisional proposal necessarily inconsistent with later development of the area for a functional theme, even if that phrase is understood as implying a single functional theme. To the extent that the Council's arguments endeavour to -- 9 of 16 -- 9 suggest that the respondent's subdivisional plan necessarily involved fragmentation of a kind contrary to the objective stated in the clause, they should be rejected and they were correctly rejected by the judge below. The fragmentation referred to is not subdivision as such but the introduction of a variety of uses, some or all of which may be unacceptable. This aspect of the Council's attempt to point to an error of law in the decision below fails. It is true, of course, that even if the fragmentation referred to in the subclause is not a direct reference to subdivision, any subdivision may ultimately bring in its wake uses of a kind unacceptable in terms of the stated objective, that is, unless otherwise prevented. But Her Honour did not fail to note this possibility. Accordingly a further attempt by the Council to demonstrate error of law by showing that the trial judge in her decision failed to regard and apply the true meaning and ambit of the clause should be rejected. In respect of the respondent's land and the other parcels of land in different ownership which lay within the relevant zone no uses were under the plan permitted as of right. Although certain uses were specifically prohibited, any user could only be with the Council's consent. The Council thus had a full opportunity to encourage compliance with the objective stated for the zone by implementing its policy at the stage of applications for consent to use. The Council's objective is only very broadly stated, but whatever precisely it may be understood as having in mind, -- 10 of 16 -- 10 it would have its opportunity if it remained alert and consistent. The means are in its hands and the objective sketched under the scheme is not endangered by the respondent's proposed subdivision into four substantial parcels. This particular subdivision may increase the number of owners with whom the Council would in the future be called upon to deal. It is not in itself productive of inconsistency with the scheme objective any more than is the present existence within the zone of parcels in separate ownership. The Council's rejection of the respondent's subdivisional plan and its submissions to this Court probably reflect a desire not to lose a negotiating advantage which it felt it had or a regret at the loss of such an advantage. The Council's additional argument that applications for subdivision in the zone should be refused unless accompanied by such guarantees of future use as will set the Council's mind at rest should be rejected. The scheme does not require any such thing. The judge below referred to evidence of the Council's success to date in implementing its objectives within the development zone. She gave quite full consideration to the possible dangers for the scheme objectives which might be involved in permitting subdivision but she clearly thought that both a blank refusal of subdivision and a refusal except where accompanied by guarantees of adherence to a development plan were not called for in this case. Any attempt to challenge this aspect of her conclusions involves an attempt to challenge a -- 11 of 16 -- 11 matter within the exercise of her discretionary judgment. Such a submission cannot be entertained by this Court since an error of law must be shown if the Council's argument is to succeed. Because the judge correctly ruled that it was fragmentation of use, meaning unacceptable diversity of use which conflicted with the scheme objective and not subdivision as such, and because she correctly applied that interpretation in considering the matter before her, no error of law is demonstrated. The appeal should be dismissed with costs. -- 12 of 16 -- 12 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 183 of 1992 Brisbane Before The Chief Justice Mr. Justice McPherson Mr. Justice Pincus [Redland Shire Council v. Seymour Land] BETWEEN: COUNCIL OF THE SHIRE OF REDLAND Appellant - and - SEYMOUR LAND PTY. LTD. Respondent JUDGMENT - PINCUS J.A. Judgment delivered 17/03/1993 I agree with the conclusion of the Chief Justice and McPherson J.A.. The argument of counsel for the appellant was, in substance, that the primary judge erred in law in treating the relevant provision - cl.17(2)(xii) of the Development Control Plan - as not being concerned with any question of subdivision. In support of his argument, Mr. Lyons Q.C., who led Mr. Ure for the appellant, relied on a number of passages in the reasons of the primary judge. Her Honour discussed the question of interpretation which arose by dealing with the evidence of two expert witnesses, Messrs -- 13 of 16 -- 13 Zahenlieter and White. The point upon which these two men differed was the meaning of the sentence contained within the clause: "It would not be Council's intentions to see the area fragmented for the purpose of accommodating a variety of industrial, showroom or retail type warehouses, reliant on exposure from an arterial road for trade and service". The judge said: "Mr. Zahenlieter contends that the fragmentation referred to is fragmentation of land use theme, while Mr. White contends that it is fragmentation of area ... Mr. Zahenlieter contends that subdivision does not of itself lead to fragmentation of land uses and that this is a matter which can be controlled by the respondent at Consent Application stage". When stating her conclusions, the judge said: "I am satisfied that the subdivision application does not offend the provisions of the respondent's Town Planning Scheme and in particular does not offend the fragmentation concern in Clause (xii), as that Clause is interpreted by Mr. Zahenlieter". The evidence of the two witnesses referred to, as its effect is explained in the reasons, had to do with two subjects: the interpretation of the sentence I have quoted, in its context, and, secondly, the practical question of -- 14 of 16 -- 14 whether, if the subdivision sought were allowed, it would create a risk of fragmentation of the kind the Plan disapproves. Her Honour's conclusion on the latter question raises no issue of law. As to the former - the interpretation of the words used - there being no suggestion that language having a special or technical meaning was in issue, evidence was not admissible: H.A. Bachrach Pty. Ltd. v. Council for the Shire of Caboolture (Court of Appeal, 12 November 1992, unreported) and see Hodgkinson "Expert Evidence: Law and Practice" at pp.156-157. It appears to me desirable that, in the interests of cheapness and expedition, the Court take positive steps to confine witnesses who claim to have expert knowledge to their proper fields of expertise. Mr. Lyons said and I think correctly that the Development Control Plan deals with some questions affecting subdivision of land; he gave examples. He also referred to the applicable subdivision by-law, cl.8(1)(b) of which empowers the Council to refuse approval of an application for subdivision if: "Any aspect of the application is at variance with or is likely to in any way prejudice the implementation of the provisions of any town planning scheme for the time being in force in the Shire, including any Development Control Plan forming part of any such scheme ...". It appears to me that if the primary judge were shown -- 15 of 16 -- 15 to have decided the case on the basis that the provision in question, cl.17(2)(xii), can have no bearing on any subdivisional application, there would have been a legal error vitiating the judgment. The question is whether the reasons given showed that her Honour made the error I have mentioned. They refer to the question of subdivision at a number of places and it is perhaps possible to isolate parts which favour the appellant's argument. But, in my opinion, it is reasonably clear that the learned primary judge did not hold that an application for subdivision can never offend against cl.17(2)(xii) of the Development Control Plan. Nor did her Honour hold that no subdivisional application, in any circumstances, can be rejected as likely to lead to the kind of fragmentation referred to in that provision. I think that, fairly read, the reasons say that it is fragmentation of use which is directly referred to in the relevant provision and that the particular subdivisional application in issue would not necessarily lead to such fragmentation. For these reasons, I agree with the orders proposed by the Chief Justice and McPherson J.A. -- 16 of 16 --